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Because The Victim Deserves

In an op-ed in the New York Times, Sheila Weller writes of the loss of her cousin, Ellen Hover, in 1977.

ON a hot July day in 1977, one of New York’s ugliest summers, my 23-year-old cousin, Ellen Hover, left her Third Avenue apartment. She had an appointment with a young photographer who had asked to take pictures of her. His name, he’d told her, was John Berger.

She never returned. Posters of Ellen’s face went up all over Midtown Manhattan. Private detectives were hired. I was racked with guilt: because of a family argument, I hadn’t seen my cousin in years. Now I never would. Eleven months later, her bones were found on the grounds of the Rockefeller estate in Westchester County.

Certainly a horrible crime and a terrible loss. Eventually, the family came to learn that the man was named Rodney Alcala, who left a trail of death across the country, and was eventually captured and prosecuted in California.

It was not until July of 1979 that he was arrested in California on charges of murdering a 12-year-old girl named Robin Samsoe. He was tried, convicted, sentenced to death and remanded to death row in San Quentin State Prison in California the following year.

Over the years Rodney Alcala’s lawyers managed to twice overturn, on technicalities, his conviction for the murder of Robin Samsoe. He aggressively fought the use of DNA evidence against him, but ultimately lost. Finally, in February 2010, a jury re-re-convicted him of the murder of Robin Samsoe, along with the other four California women. He has not stopped fighting his execution sentence and suing the state for things like failing to provide him with a low-fat diet.

Assuming, for the sake of argument, that Alcala is precisely as evil as claimed, and unquestionably guilty of the death of Ellen Hover as well as Robin Samsoe, despite his lawyers using “technicalities” to compel his guilt being proven according to law, since it couldn’t be anyone else’s fault for causing “technical” flaws that exposed the conviction to being reversed twice, he’s been re-re-convicted and re-re-sentenced to death.

Not good enough, is Weller’s point. Her cousin’s murder remained a cold case, open and unresolved as far as New York was concerned, even though they were certain of her killer and he was facing execution.

For two years investigators worked to turn Ellen’s cold case warm. Despite the fact that her killer was already sentenced to death and would never be released, despite the time and the resources and the terrible memories involved, they didn’t give up. Eventually, their painstakingly obtained evidence built a timeline of Rodney Alcala’s whereabouts, his route before and after murdering Ellen. It seemed to me like a devotional act.

A devotional act is an apt description, as it bore far more similarity to religion than law. The case was ancient, such that witnesses were long dead and evidence was gone or decayed. The resources needed to warm this case would come at the expense of current unsolved crimes, and there remained no way to execute the murderer twice, if not more. But that didn’t matter.

Every victim deserves her own day in court, no matter what else the culprit has been arrested for, no matter how long ago the crime: this is the pure integrity of opening a cold case.

When the claim is framed in terms of what a victim “deserves,” it’s a blatant appeal to emotion. Most people find this compelling, despite its being irrelevant to the existence of a criminal justice system. This isn’t to be unsympathetic to the loss of a human life, or the pain suffered by the survivors of tragedy, but that it deflects from the purpose of the system: to prevent people from engaging in conduct civilized society deems unacceptable and punish those who do. In the case of capital murder (which exists in California though not in New York), there is no rehabilitative purpose, and so it need not be considered.

It’s not about what victims deserve. It’s not even about what the survivors of victims feel they deserve, which masks their own desire for closure and retribution. Such emotional-laden assertions lead us away from a system that serves society, one that is concerned with making certain that the person convicted was the person who committed the crime.

When all of our angst and anger is focused on making certain that someone pays for the tragedy, concern for the reliability of evidence, the adherence to constitutional rights are cast as “technicalities.” Who cares about the rights of the murderer when we focus on what the victim deserves?

It’s disturbing to argue against the tide of emotion flowing from the survivor of a terrible tragedy. It feels wrong to be unsympathetic to such pain. But the system isn’t about personal vindication of whatever emotional needs remain unsatisfied in the aftermath of a crime. As terrible as that might sound, particularly since it often brings such accurate reactions like “you wouldn’t feel that way if it was your child who was murdered,” and this is true for most of us, it’s not the point.

The victim does not deserve anything of the criminal justice system. Society has gotten its pound of flesh from this convicted murderer, and it will exact its revenge with his execution. That is all the system is meant to do, and perhaps more so. The survivors of the victim do not get to spit on the dead body of the killer, kick it, throw garbage into his grave, even if that would make them feel better.

In a Manhattan courtroom last month, Rodney Alcala, now 69, pleaded guilty to Ellen’s and Cornelia Crilley’s murders. After 35 and 41 years — much longer than the young women lived — he pleaded out, just like that. It was the first time in his long criminal history that he had ever confessed to a killing. The collapse of his resistance seemed taunting to all of us: Sure I killed them. What took you guys so long?

And yet it failed to satisfy the need within Weller for, what? Justice? Weller concludes by again asserting that every victim deserves “singular justice, as late as it may be in coming, as much a formality as may be the punishment.” But it will be as unfulfilling as Alcala’s plea, because the system doesn’t exist to fill the emotional void that crime leaves behind, and can never be driven by the claim of what a victim deserves. It serves no one.

13 comments on “Because The Victim Deserves”

Victims are perfectly entitled to their day in court. They can bring a civil lawsuit based on the harm they suffered. That’s what civil courts are for. But as you rightly say, it’s not what the criminal justice system is for.

I usually try to explain this concept to people by analogizing criminal justice to emergency medicine: we don’t let doctors operate on their immediate family members because we don’t want personal emotions to undermine the ability of medical staff to make an objective determination of what needs to be done in any particular case. A doctor operating on his wife will naturally want to spare no expense, and perhaps take inappropriate risks to save a loved one. Similarly, crime victims & survivors will naturally tend to want the harshest punishments possible for offenders. But as Scott mentioned, we don’t people in jail for hurting someone. We put them in jail for breaking laws. That those laws happen to involve someone getting hurt is a coincidence, not an imperative to let victims second chair for the prosecution.

I think I have a solution that would make everybody happy – or at least, less upset – in Alcala’s case specifically:

Instead of LWOP, give him Permanent Punitive Separation. That should be a relief for him, i.e. not being executed, and give some measure of satisfaction to the survivors. It also addresses his not having a low-fat diet.

(Since learning of the PPS concept, I’ve been wondering what your and the legal community’s take on it is.)

WRT to the “victims’ day in court…” They aren’t the ones on trial. However, there certainly seems to be a push to make the criminal justice system a mechanism to fill that emotional void.

It’s “Segegration”, not Separation. At least, in whatever places I could find it on the web.

I think that this is a problematic issue at best, because it deals with punishment on an ongoing, “as bad as we can make it” basis. So the entire point is ongoing revenge.

The author of the article I read seemed to feel that the point was to have this implacable ungoing vengeance with no animosity behind it, but humans generally aren’t capable of such a thing…what would this do to the people required to support such a system? And generally, isn’t the purpose of our prison system supposed to be more than revenge?

Scott H. Greenfield

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SHG